For parents who are divorced, divorcing or separated, and there are minor children, one of the most important issues or concerns they have is their relationship with their child and their needs. The time, or custody, each parent will have with the children must be determined, or modified if it is a post judgment custody issue. Oftentimes, one parent is in a better position to provide a more healthy environment for their child. One parent may be in a better financial position or living situation, or that parent may be in a healthier relationship better suited to foster the child’s physical and emotional wellbeing. If that is the case a parent may request orders to have the child spend more time in their care. In these cases, the parent will need to file a Request for Order with the Family Court to establish custody and visitation orders or to modify the existing orders. These orders are made in the best interests of the child to ensure their wellbeing.
Do you live in San Diego and need to file for custody of your child? Keep reading to find out tips on what to expect when filing for custody in San Diego.
Please note, this blog post is just for informational purposes and does not constitute a legal client-to-lawyer relationship between Hassett Family Law and the person reading this.
How is Custody Defined?
There are two types of Custody:
- Legal custody, which means who makes important decisions for your children (like health care, education, and welfare) and is typically equally shared by the parents, absent a specific reason(s) a parent is not capable of making these decisions;
- Physical custody is the amount of time each parent spends with the child and where the children live. Physical custody can be shared equally if it is the best interests of the child to do so.
In California, when parents share custody equally, this is called “joint custody”.
Emergency Custody Order in San Diego
If there is a sudden change in parenting or behavior, or the circumstances surrounding the health and welfare of a child is in jeopardy, you may need to get an Emergency Custody Order. These are referred to as ‘Ex Parte’ orders and are heard very quickly on an emergency basis. For example, if your spouse is found to be habitually driving drunk with your child, or otherwise putting them in harm’s way, this is taken very seriously and can be one reason to file for an emergency custody order.
Try to Set Up a Visitation Plan
You also need to prepare your “Custody and Visitation Plan”. If you can agree on a schedule with your (soon-to-be) ex-spouse, that is ideal. Otherwise you may have to fight for you and your child’s rights and an attorney can best guide you through the visitation process.
San Diego Superior Court – Family Law Division – Custody
San Diego child custody court and laws are in compliance with the State of California’s laws governing all family law matters. There is a Family Law division at every Superior Court in San Diego and Orange County where all Family Law matters are filed and heard, including custody matters.
Use Your Attorney!
We often represent families and their needs for child custody. Family Law is all we do. We handle all matters in the Family Law Court. The court will eventually issue an “Order” which is binding. (Of course it can be modified as circumstances change – please see our article, “How to Request or Modify Child Support”.)
Getting your Custody Case Open
There are multiple court forms to fill out. Your attorney will help you make sure that you are represented in the best possible light and for the best possible outcome for your child or children.
The initial document will be a “Request for Order” which should include a ‘Declaration’ that your Attorney will help you prepare. The Declaration is your ‘Testimony’, especially if the Court does not have time to allow you to describe all of the circumstances that are unique to your case.
You will also need a “Custody and Visitation Plan”. If you can agree on a schedule with your (soon-to-be) ex-spouse, this is ideal. If this isn’t possible, you may have to fight for you and your child’s rights.
Your Attorney will guide you through this process.
Some elements that can make a world of difference are;
- Domestic Violence. If there is proof of abusive behavior, it is best to file this when it happens. The Court does not look kindly on domestic violence against the child, or in the presence of a child.
- Available time for your child. Do you travel extensively?
- Quality of time with your child. How do you spend time when you are with your child?
- Financial forms including “Income and Expense Forms”. These will allow the court to understand your financial situation.
- Ability to support your child. Be aware that the court will ask for BOTH of you to pay for your child, regardless of who may have physical or legal custody.
File for Custody with the Court
Once your Attorney has prepared your “Request for Order” documents, your Attorney will file these with the Court along with your Declaration, which is your testimony.
COVID has very much impacted all cases, including custody cases in San Diego. You may not be able to immediately get a hearing date, but eventually the court will set this hearing.
Serve the Other Parent
You have to serve / notify the other parent of the Court Hearing. You cannot serve them yourself! Your attorney will arrange for this. They will include a blank “Responsive Declaration to Request for Order” where your ex-spouse or parent will have a chance to describe their plan.
The other person has to be served or the court will not make any orders in your custody case unless the other parent has been properly served.
Go to Mediation If Required
In San Diego, parents must attend the mandatory mediation if there is a custody and/or visitation dispute, except in the case of child molestation, child neglect or child abuse, in which case emergency temporary orders may be issued. This is before your court hearing date. You must attend your mediation session. The goal of a mediation session is to help both parents discuss their disagreements about a parenting plan.
During this session, a specially-trained counselor/mediator will listen to both parents. As an impartial participant in the discussion, the mediator will listen to both parents’ concerns. The mediator can explore different parenting arrangements to find one in the child’s best interest. The mediators try to help parents create a plan that allows the child to spend time with both parents to some extent. The mediator also assists the parents in dealing with any lingering resentment issues.
In cases of domestic violence or restraining orders, the parents can meet with the mediator in separate sessions.
If you and the other parent agree on a parenting plan, you should review the detailed parenting plan with your legal counsel. Then, your Attorney can file it with the court.
Sometimes parents don’t reach an agreement in the mediation session. If this is the case, the mediator can give a written recommendation to the parents and court for custody arrangements. You do not have to agree with the recommendation, so be clear to the mediator during the session.
What to Expect at your Custody Hearing
Your Attorney should brief you on what to expect at the Hearing. In San Diego right now, these are almost always held remotely – like with Zoom of Team Viewer. Typically there is a docket of cases to hear. Your Attorney may decide that you need more time than the court has available – in which case they will ask for a “Continuance”. While this may temporarily postpone your day in Court, it may be necessary to allow the Court time to understand all of the issues.
Be honest and prepared to tell the judge what you believe is the best arrangement for your child. This is done in the Declaration paperwork your attorney prepares. Make sure that you put forward why your parenting plan is in the best interest of your child. Your Attorney will do most of the talking at the hearing. You may end up summarizing, or just confirming certain aspects of your “Declaration”.
Once the court has made a decision, the judge will issue and sign a court order for custody. This order is legally enforceable. It will include visitation schedules, financial arrangements and all other aspects needed for child custody.
Hassett Family Law, a Professional Corporation
Hassett Family Law, PC, is located in San Diego, California to help families through the most difficult times of their lives. We specialize in – and only handle – Family Law matters. We have on staff Certified Family Law Specialists that have achieved special recognition from the California State Bar. To learn more about our practice or to set up a complimentary consultation, please contact our firm by calling 858-504-7824.